Mobile Phones / Construction & Use

For offences committed after 1 March 2017, the endorsement has been doubled to six penalty
points. Mobile phone usage whilst driving remains one of the most frequently prosecuted road
traffic offences in the lower courts. A new driver is liable to face revocation if caught using the
phone only once. The question of whether a driver is actually using a mobile telephone whilst driving
will be a perennial issue for Scottish courts.

Penalties for using a mobile phone while driving

In Scotland, the penalty for using a mobile phone while driving is 6 penalty points and a fine of up to £1,000 (or £2,500 if driving a passenger or goods vehicle). The fixed penalty issued for this offence by Police Scotland carries 6 penalty points and a fine of £200.

Michael Lyon Solicitors Limited conduct criminal trials involving prosecutions for drivers accused of using mobile telephones on a weekly basis. It will be noted from the testimonial section of our website that we have a formidable track record in securing acquittals in mobile phone prosecutions in Scotland. We have been instructed in a number of high profile cases and pride ourselves on our detailed and forensic approach to the defence of mobile telephone prosecutions in Scotland.

The legislation covering the use of mobile phones is another example of how the law can struggle to cope with technology. Historically, the use of a mobile phone would have come within the terms of the Road Traffic Act, Section 3, namely careless driving, although the creation of a specific statutory offence was considered appropriate and has been in force since 2003.

From 1 March 2017 the fixed penalty for using a mobile telephone whilst driving has been increased to six penalty points and a fine of £200. A conviction for such an offence will now mean a new driver will face revocation for their first mobile phone offence and drivers will be in line for a totting-up disqualification if caught using a phone twice in a three year period.

Prosecutions for mobile phone offences generally involve the parole evidence of two Police officers called by the Crown to give evidence about what they observed. Typically the evidence will involve a description of some kind of purported interaction with a hand-held mobile telephone, for example, typing on the screen, talking into the phone, etc.

The provisions most commonly relied upon by the Crown provisions are detailed as follows:

Mobile telephones

110. (1) No person shall drive a motor vehicle on a road if he is using

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4).

(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is using

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4).

(3) No person shall supervise a holder of a provisional licence if the person supervising is using

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4), at a time when the provisional licence holder is driving a motor vehicle on a road.

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.

(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention

(a) he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;

(b) he is acting in response to a genuine emergency; and

(c) it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).

(6) For the purposes of this regulation

(a) a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;

(b) a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);

(c) “interactive communication function” includes the following:

(i) sending or receiving oral or written messages;

(ii) sending or receiving facsimile documents;

(iii) sending or receiving still or moving images; and

(iv) providing access to the internet;

(d) “two-way radio” means any wireless telegraphy apparatus which is designed or adapted

(i) for the purpose of transmitting and receiving spoken messages; and

(ii) to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and

(e) “wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(3).”

A device is deemed to be hand-held if it is actually held or must be held at some point during the course of performing an interactive function. This concept includes making or receiving a call, sending or receiving a text, surfing the internet etc.

In cases where the Crown are not in a position to prove usage of a mobile phone whilst driving, then Section 41D(a) of the Road Traffic Act 1988 creates a linked offence as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or causing and permitting such an offence. This charge would be appropriate in cases where a driver is distracted by something, such as a mobile telephone or even the car stereo, thereby affecting his ability to control the vehicle.

We often receive calls from clients involving scenarios where the proposed line of defence relates to the vehicle being stationary at a set of traffic lights. It should be noted that, from a legal perspective, you are still deemed to be driving even though your vehicle may not even be in motion.

Often the most damning evidence in a mobile telephone prosecution relates to replies made to charge and caution. There is often very little we can do in the event usage is admitted at the time. The classic case of answering a call to say that you will call back because you are driving will not dissuade the Police from issuing a fixed penalty for a mobile phone offence and indeed will make your case very difficult to defend once the matter is cited to Court.

The penalties upon conviction for using a mobile telephone or similar device whilst driving in Scotland have now doubled to a six penalty point endorsement for offences committed after 1 March 2017.

The presumption of innocence is not a myth. The Crown in Scotland require to prove that you you were using a mobile telephone or similar device whilst driving beyond reasonable doubt. Should there be any doubt, then the Court is obliged to make a finding of not guilty or not proven. If you have received a fixed penalty notice or Court citation for an offence relating to the use of a mobile telephone or other device whilst driving, call Michael Lyon Solicitors Limited for expert advice and assistance.

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FAQS

HOW MANY PENALTY POINTS DO YOU NOW GET FOR USING A MOBILE PHONE WHILST DRIVING?

For offences committed on or after 1 March 2017 the standard fixed penalty has been increased to six points and a fine of £200.

IS IT AN OFFENCE TO USE YOU PHONE WHILST DRIVING IN AN EMERGENCY?

You are permitted to use your phone whilst driving subject to three conditions: (1) you are using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999; (2) you are acting in response to a genuine emergency; and(3) it is unsafe or impracticable for him to cease driving in order to make the call.

CAN I USE MY PHONE AS A SAT NAV WHILST DRIVING?

No. This will contravene the regulations if using a hand-held device to act as a satellite navigation system.

I WAS STOPPED IN QUEUEING TRAFFIC AT A RED LIGHT AND CHECKED MY TWITTER FEED. AM I USING THE PHONE AS I WAS NOT TECHNICALLY DRIVING AT THE TIME?

The law considers you were both driving and using the phone and therefore have contravened the regulations.

CAN USING A VEHICLE IN A DANGEROUS CONDITION FORM THE BASIS FOR A PROSECUTION FOR DANGEROUS DRIVING?

Yes. Whilst there are separate construction and use provisions dealing with tyres, brakes, lights, etc., it is open for the Crown to base a dangerous driving prosecution solely on the condition of a vehicle.

IF I GET STOPPED WITH FOUR BALD TYRES, WILL I LOSE MY LICENCE?

It is a common misconception that four defective tyres will lead to four sets of three penalty points. On the assumption the offences were all detected at the same time then you will only receive three penalty points in total.

DO I HAVE TO MAKE SURE A CAR THAT DOESN’T BELONG TO ME IS ROADWORTHY BEFORE DRIVING? SURELY IT’S THE OWNER'S RESPONSIBILTY?

It is your responsibility to make sure the vehicle is roadworthy. It is also an offence to cause and permit another to drive a motor vehicle when the weight, position or distribution of its load or the manner in which it is secured, involves a danger of injury.